The Eleventh Circuit issued a decision on an important issue in the area of disability rights: whether a business website is a “place of public accommodation” under the Americans with Disabilities Act (ADA). Complexities aside the 11th Circuit basically said “no” in a 2-1 decision, at least not for informational websites. A business was not liable to a plaintiff with vision impairment, for a website lacking design features friendly to those who use screen readers.

While some courts have taken a similar approach, others have concluded otherwise. Those courts say websites can be places of public accommodation within the ADA, especially where there is a sufficient nexus to the physical business location.

The latest decision is therefore significant because it deepens the split of federal authority on an issue that impacts virtually every ADA-covered business and countless customers with disabilities across the nation. Divergent views on an issue with widespread impact entice the U.S. Supreme Court, especially where the issue is one of important societal concerns like disability rights and inclusion. It remains to be seen whether the high court will get involved and if so, when.

What is our personal responsibility?

The Court’s decision raised for me an important question outside the law. We are all electronic content creators, and even more so in a COVID world. Often our work is meant for the public at large, including potentially billions with visual impairment among other disabilities.

Against this backdrop, what is our personal responsibility and opportunity to make these online “interactions” more inclusive? That’s not a novel inquiry, but it’s one I’ve ignored for far too long. But now that I’m properly paying attention, I see there are easy things I should have been doing all along. Let’s take a look at just a few examples.

Accessible fonts, text justification, hyperlinks & images

The most basic and intuitive example first: Font size. The standard 12pt is ideal, and 9pt is the absolute bottom limit according to accessibility standards published by Penn State University. I’ve gone lower than ideal a lot, and below the absolute bottom on PowerPoint for sure. While I knew this was a bad look by any measure, I failed to understand it also risked excluding people based on disability.

There are less intuitive fixes that seem just as easy. For example, authorities on accessibility universally say we should avoid “center justification” because it makes text more difficult to read for people with dyslexia. Left justification is best, as are sans-serif fonts such as Arial and Verdana. Similarly, “fancy” fonts can pose a challenge for those with vision impairment.

Another place to be mindful is hyperlinking. They should be in bold to be more detectable to those with color-based vision challenges. We should also strive to use the destination title itself on the hyperlink, as it’s more friendly for screen-reading devices than something generic like “click here.”

A great resource from Microsoft is titled “Make your Word documents accessible to people with disabilities.” Among several recommendations is one to add “alternative text” to images, or a descriptive caption. People who use screen readers can then understand what is being depicted. Something so simple like that means it could take just two seconds to be more inclusive.

A good start, lots more to do.

Obviously, there is a lot more to be done than to change our fonts, slap a caption on a photo and congratulate ourselves, and much more to doing accessibility well. I’m just coming to scratch the surface on all this personally. But my mindset is changing. I developed this jaded view each morning throughout COVID stumbling to my computer thinking, “It’s a Virtual World, I’m just logging into it.” But what am I implicitly bemoaning at all? I can engage in a virtual world unencumbered, many can’t, and I can do something to help. Going forward I therefore hope to log in more mindfully and to E-engage in the manner that someone who says they care about diversity should.

About the Author

Timothy K. Giordano, Esq. has been active in the private practice and business of law since 2002. He has served as a Trustee for the American Conference on Diversity and as a member of its Executive Committee. He also teaches in the School of Communication and Media at Montclair State University.

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